Branti v. Finkel – Oral Argument – December 04, 1979 (Part 2)

Media for Branti v. Finkel

Audio Transcription for Opinion Announcement – March 31, 1980 in Branti v. Finkel
Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Warren E. Burger:

Mr. Parris, you may continue.

Marc L. Parris:

Thank you.

In answer to Mr. Justice Stewart’s questions as to the termination notice referred to in 6A, that is actually a purely ministerial pro forma act in order to indicate to the various county departments such as the treasurer and personnel that determination has taken place.

Otherwise, you’d have people continued on the pensions and payroll.

It’s really a bookkeeping type of a thing.

John Paul Stevens:

Mr. Parris —

Potter Stewart:

Whether —

John Paul Stevens:

— were — were these people part time?

Marc L. Parris:

That’s correct, Your Honor.

John Paul Stevens:

Just part time.

Marc L. Parris:

Yes, part time.

John Paul Stevens:

Did they practice on this side?

Marc L. Parris:

Yes, sir.

Potter Stewart:

What is the — is — is your — you — you tell us as a matter of fact and of law that these people’s employment automatically expired subjected to only to this ministerial certification of that fact.

Marc L. Parris:

That’s correct, Your Honor.

Potter Stewart:

At the time that the — that — that the public defender himself, left office.

Marc L. Parris:

That’s correct, Your Honor.

I think the best example can be myself, because I’m the County Attorney of Rockland County.

I have similar employees in the exempt class, attorneys, assistant county attorneys.

I hope to be reappointed next month.

I will be then retaining these employees who will then have to go and swear an oath.

If they had some sort of a continuation, why would they have to swear their oath again next month after I retain them?

It’s because —

Potter Stewart:

You say you’ll —

Marc L. Parris:

— they serve at my pleasure.

Potter Stewart:

— you’ll reappointment them, not (Voice Overlap) —

Marc L. Parris:

That’s if I reappointment them.

Then they have to go and swear an oath.

Now, why would they have to do that?

Warren E. Burger:

Do they receive —

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Marc L. Parris:

They serve at my pleasure.

Warren E. Burger:

When they’re originally appointed, do they receive a document or a certificate, something like the one that the President gives to the members of his cabinet which ends with the words, “At the pleasure of the President?”

Marc L. Parris:

I don’t believe so, sir.

Warren E. Burger:

They don’t get any piece of paper?

Marc L. Parris:

No.

Byron R. White:

But the law says it.

Marc L. Parris:

Excuse me.

Byron R. White:

The law says it though.

Marc L. Parris:

Yes, the law does.

Byron R. White:

That they serve at his pleasure.

Warren E. Burger:

No.

Marc L. Parris:

Yes.

Byron R. White:

What, is that a statute or an ordinance or what?

Marc L. Parris:

No, Your Honor.

Of course, there is no statute.

Byron R. White:

Well, is there an ordinance that says at his pleasure?

Marc L. Parris:

Well, it’s through the Civil Service Department of the State of New York, interpreted by our personnel director.

Byron R. White:

So what does it say?

Marc L. Parris:

Well, as he states in —

Warren E. Burger:

Where do we find that in the record?

Marc L. Parris:

Page 138.

Warren E. Burger:

Yes, that’s what I have here.

Marc L. Parris:

The appendix toward the bottom.

The question, “Is there such a thing as a permanent appointment of an exempt man so that he can remain in office and succeed as appointing authority?”

Answer, “No, sir.”

Question, “When individual is appointed to an exempt position, he’s required to take an oath of office, is he not?”

Answer, “All employees are required to take an oath of office including those appointed to the exempt class position — position.”

Potter Stewart:

What did the District Court have to say on this subject, do you remember?

Marc L. Parris:

Well, I would refer also — you had asked the — the question as to Judge Broderick on 25A.

Potter Stewart:

Yes.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Marc L. Parris:

And above he — he does state the third and final requirement of the Elrod concurrence that the attempt to remove plaintiffs from their jobs have been based upon — on the sole ground of their political beliefs.

But down about six lines from the — the bottom of that same page, he writes, “The incident was not a ground for defendant’s decision not to renew plaintiff, Finkel.”

Potter Stewart:

Yes, and then his — his caption for that section of his opinion is “Plaintiffs were not reappointed.”

But is there any — beyond that, is there any — are there any findings of the District Court in which you remember on this —

Marc L. Parris:

No.

Potter Stewart:

— subject?

Marc L. Parris:

No, Your Honor.

John Paul Stevens:

Mr. Parris, could I ask you a question of you about this?

You said that they would have to take — your people have to take an oath in the new term.

Well, this testimony doesn’t say that and those statutes says if you call to it, why do you say they have to take a new oath?

Marc L. Parris:

It’s by civil service law.

They announced serving —

John Paul Stevens:

What —

Marc L. Parris:

for a new —

John Paul Stevens:

— what in civil service law says that?

What if they just stayed on and nothing was done.

As I understand, the way this is written, he — he began the process of executing termination notices for six of the nine assistants who had served under Barone.

I — I thought you under — he indicated if he had done nothing, they would have just continued on the payroll, wouldn’t they?

Marc L. Parris:

It may have, but they wouldn’t have continued —

John Paul Stevens:

There’s nothing in the law that says they would not have stayed on the payroll, is there, if he’d done nothing?

Marc L. Parris:

They may not — they — they could have by error because the ministerial act wasn’t —

John Paul Stevens:

Well, how do we know it’s error?

Marc L. Parris:

— didn’t take place.

John Paul Stevens:

How do we know it’s error?

Your witness doesn’t say that and the law doesn’t say that and regulations don’t say it.

Marc L. Parris:

Well, basically, I know that because the fact that I’m the County Attorney and I’m —

John Paul Stevens:

And that you’re required —

Marc L. Parris:

— I’m involved —

John Paul Stevens:

A requirement that you imposed, right?

Marc L. Parris:

Well, it’s an involvement that I know because I handled these matters.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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John Paul Stevens:

But if you didn’t impose that requirement at all and nothing at all was done —

Marc L. Parris:

Right.

John Paul Stevens:

— is it not true they would continue just to get their paychecks in the ordinary routine to continue to do their work?

Marc L. Parris:

No, Your Honor, because they serve at the pleasure of an appointing authority.

That is stated in Mr. Anderson, uncontroverted testimony.

If the person is gone and you’re serving that person and his term ends, they also self-destruct.

Byron R. White:

But isn’t that necessarily the predicate for the District Court’s judgment that you couldn’t fire them, that they couldn’t be fired for the political beliefs.

That their term lasted beyond the expiration of the term —

Marc L. Parris:

Yes, Your Honor.

I believe —

Byron R. White:

— of a public defender.

Marc L. Parris:

That was an error.

Byron R. White:

So don’t — don’t you think the — the — don’t you think the District Court read New York law and saying their term does not end with — with the term of the public defender?

Marc L. Parris:

Maybe there was an error on the part of Judge Broderick.

Byron R. White:

Well, behind — I know but we don’t usually second guess district judges about state law.

Marc L. Parris:

I understand that, Your Honor.

William H. Rehnquist:

Counsel, what — what about page 32 (a) of the appendix.

I — I’m wondering how — how semantically and how substantive this discussion we’ve been having as where you have Footnote 10, where Judge Broderick says, “The fact that plaintiffs are removable at the will of the public defender is of course irrelevant to the — the determination of the constitutional issue prevented herein.

Do you see a — substantive distinction between a person being removable at will and a person whose term expires at a given point?

Marc L. Parris:

Yes, I do Your Honor.

And I would like the Court to take notice of Judge Hall’s concurrence in (Inaudible) because he made a point to that, that this — it’s not a termination.

There’s a difference if you’re going to talk about someone you’re not rehiring.

For instance, to really — it comes down to — that I think is that sponsorship to — to nine vacant positions, absence the coercion in Elrod, leaves me to believe that you couldn’t violate anyone’s constitutional right.

Where is the — this right of liberty?

Does it extend to someone who has another job and who is just not rehired?

And I believe that —

Byron R. White:

I suppose that you could argue that reading — that it’s fair to read Judge Broderick’s opinion as saying it doesn’t make any difference whether it’s a — whether — whether the term expired or not.

That failure to reappoint is subject to the same constitutional rule as — as if the term was held to extend until fired.

Marc L. Parris:

Well —

Byron R. White:

And I’ve — if that is the — and if — if that poses a completely different question if he held that.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Marc L. Parris:

Well, yes, but —

Byron R. White:

And I’m sure you — you would say that.

Marc L. Parris:

Yes.

I would also like to return if I may to the question of expectancy.

We have the case here where one of the respondents, Mr. Finkel, changes registration to a Democrat, several months prior to January 1978.

That doesn’t sound like someone who has the expectancy, an objective expectancy —

Byron R. White:

But it didn’t work —

Marc L. Parris:

— of returning.

Byron R. White:

But it didn’t work.

Marc L. Parris:

Excuse me.

It didn’t work.

Yes, Your Honor, obviously.

Warren E. Burger:

You — you haven’t mentioned anything yet and I hope you will at some point at your convenience, of the policy relationship that exists between the management of the office and all of the staff.

Marc L. Parris:

Yes, I plan to, Your Honor.

Warren E. Burger:

No.

Do it at your own time.

As — as part time employees.

Warren E. Burger:

That’s correct, yes.

Also, historically, respondents had sought some people in this office that had been rehired and others that hadn’t been.

They both tried and used political friends to try to receive recommendations.

It doesn’t sound like someone with an objective expectancy —

Byron R. White:

Well —

Marc L. Parris:

— like imperatives.

Byron R. White:

Could I as — could I ask you?

Suppose the terms did expire and the public defender — a new public defender put out a notice on the wall and said, “Only — only Democrats need to apply or only Republicans need to apply.

I’m just not interested in hiring anybody but Democrats.

Does Elrod cover a situation like that or not?

Marc L. Parris:

It may in that case, but that’s not what happened —

Byron R. White:

Well, of course it wasn’t alright —

Marc L. Parris:

— here.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Byron R. White:

— was it?

Marc L. Parris:

No it was in Elrod rule.

William H. Rehnquist:

Well, are — are you referring to the plurality in Elrod or — or to the — there was several separate opinions in Elrod.

Marc L. Parris:

As to which issue that —

William H. Rehnquist:

As to — in your response to my Brother White.

Marc L. Parris:

I think, it made it —

Byron R. White:

Well, let’s — let’s assume that these employees, everybody agreed to these employees were — were policymaking and confidential, let’s just assume that they — or that — that they were not.

Assume they were not.

Marc L. Parris:

Right.

Byron R. White:

Policymaking or confidential and they put on — you put on the sign on the wall, “Only Democrats need apply.

We’re — we’re in a process of rehiring and your terms have expired, but none of you who is an — who is a Republican need apply.”

Does Elrod cover that or not?

Marc L. Parris:

I think if the Court wanted to extend it to that.

Byron R. White:

Well, so you say, it doesn’t.

Marc L. Parris:

No.

Byron R. White:

It doesn’t —

Marc L. Parris:

No, it might.

Potter Stewart:

The — the Elrod judgment was — was supported by five members of this Court.

Three joined in one opinion and which is — I’d call them correctly, the plurality opinion and two joined the judgment based upon another considerably shorter opinion.

And that second opinion joined the judgment only on the basis of the proposition that an employee cannot be discharged or threatened with a discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.

And if there is no discharge here, then as you say, you’d have to extend out if it’s not covered by Elrod and — and Elrod would have to be extended to cover it.

Marc L. Parris:

I agree with you, Mr. Justice Stewart.

Potter Stewart:

Is that correct?

Marc L. Parris:

And one — one very important point here, we talk about solely for political reasons.

I’d like to point out that there were two Democrats in that whole — an office which who were not rehired.

One of the people that was — were rehired is a registered blank.

And — and in fact, the record also shows that my client had spoken to a Republican legislator about — he was very interest in law secretary — Republican law secretary.

And Legislator (Inaudible), a Republican, stated, “I’m not interested in him, he has a job.

I want to find a job for Tabakman.

So there was, I think, no denial of political beliefs in the sense of they’re being Republicans.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Marc L. Parris:

What you had was as I see it, nine vacant positions, 280 some odd attorneys in Rockland County, all with a possibility, if they could qualify as criminal attorneys.

Warren E. Burger:

Could the public defender on his own decide that he does not want to have part time assistance anymore and just abolish the positions?

Marc L. Parris:

No, Your Honor.

It would have to be done by the legislature of Rockland County.

Warren E. Burger:

The — the legislation itself, fixes part time and full time?

Marc L. Parris:

Yes, sir.

They could change it to full time and again, they do control that.

It’s the power of the person.

They could have three assistants or nine assistants, it’s the local legislature.

Now, as we stated before, we don’t believe we have to show a compelling state interest, because we don’t believe that any constitutional right was lost.

In fact however, we believe we have shown a compelling state interest in that attorneys are special.

I think this Court recognized that attorneys were special in Bates versus the State Bar of Arizona.

They’re special in our civic, cultural and political life.

I would like the Court to envision a political ladder, right here.

At the bottom rung, our assistant county attorneys, assistant public defenders, assistant attorney generals.

Up atop, the U.S. Congressman, U.S. Senators, Governors, and of course, judges.

And I think this Court will recognize that attorneys do have a higher proportionate share than other occupations and professions as to these high and lofty positions.

What I’m saying is if you affirm the local court decisions, you will effectively set up an entry barrier, the young, intelligent, ambitious male and female, black and white attorneys from starting on that ladder and moving up to those lofty positions.

Byron R. White:

Did you make that argument below?

Marc L. Parris:

No, Your Honor, because below we believe that there was no constitutional right that was lost and we didn’t have to show a compelling state interest.

But I think it’s an important interest.

I think that myself — and this is really why I’m here, because I do believe in a patronage system, our patronage system in Rockland County, a moderate one.

And I’m an example of it, so is my co-counsel, Mr. Apotheker.

I start — in 1974, the Democrats took over the legislature in Rockland County, the majority.

And I was appointed assistant county attorney.

From there, I moved to first deputy county attorney.

Two years ago, I became county attorney.

Leaders have spoken to me recently about running me for state office and possibly a county court judgeship.

Mr. Apotheker was just recently elected to a town justice seat in Haverstraw.

And that’s what I’m talking about in the ladder.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Marc L. Parris:

I don’t want to leave the ladder to the rich who don’t need the political machinery.

They don’t need the party strength to move up that ladder.

They can skip all the rungs.

They can go straight with their money and run for U.S. Senator or Congressman.

Warren E. Burger:

What’s wrong with your arguing that kind of an issue is not also assuming this has — is relevant.

Would it not be equally relevant that this is related to the existence of a two-party system?

Marc L. Parris:

Absolutely.

I believe in the two-party system and I believe that both parties in Rockland County, Democrats and Republicans, just would be able to attract these intelligent, young and yes, ambitious attorneys to move up this ladder.

Warren E. Burger:

The question still lands whether that’s relevant to the issues in this case however.

Marc L. Parris:

Maybe, Your Honor, but something I wanted to say to this Court because I deeply believe it.

Thurgood Marshall:

What happens to the point of independent lawyer who doesn’t belong to either party?

Marc L. Parris:

Well, I say through that party system, but attorneys generally as they come out of the law school to a great extent, most of them do get involved in politics.

That’s why they’re different than deputy sheriffs and janitors and we recognize —

Thurgood Marshall:

So he is —

Marc L. Parris:

— that in Bates.

Thurgood Marshall:

So the nonpartisan lawyer becomes a janitor?

Marc L. Parris:

Not necessarily, Your Honor.

He’d still have a right to run, but runs —

Thurgood Marshall:

And end up a janitor?

Marc L. Parris:

[Laughs] No, Your Honor.

Potter Stewart:

Where is Rockland County?

Thurgood Marshall:

(Voice Overlap) I don’t see why think the special privilege of party member?

Marc L. Parris:

Party — I don’t know.

Thurgood Marshall:

I don’t see where you get that in the Constitution.

Marc L. Parris:

Well, in the Constitution, but it — it’s a — Court can take judicial notice of the importance of the two-party system.

It has been for the past 200 years.

Recommendations of patronage, whatever you want, isn’t all about public and our private lives, everyone recommends someone for something.

Thurgood Marshall:

Well, I know of a very great prosecuting attorney in New York that had both parties endorsement every time he ran.

Marc L. Parris:

That is quite often.

William H. Rehnquist:

Well, isn’t — isn’t the real question not whether the — the patronage system is desirable or undesirable or whether New York has chosen or not, but this was a civil rights action where Judge Broderick felt — found that Rockland County’s application of it violated the Federal Constitution.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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William H. Rehnquist:

And unless it violates the Federal Constitution, New York is free to choose its bizarre system of promotion as it — as it wants.

Marc L. Parris:

That’s correct.

William H. Rehnquist:

So far as — so far as the federal courts are concerned.

Marc L. Parris:

Yes, I — but I believe this Court should be following as I said before, the reasoning and especially Judge Hall’s concurrence because there, I think there’s a tremendous resemblance between (Inaudible) —

Yes.

Marc L. Parris:

— and this case.

In both cases, you don’t have the coercion of Elrod.

And in both cases, you have terms that came to an end.

Yes, in (Inaudible) was by statute.

But it was and also the question of — in (Inaudible) of a small office looking for loyalty as opposed to the Deputy Sheriff — Sheriff’s Office in Cook County which was 3000 or 4000 employees.

Potter Stewart:

Where is Rockland County, Mr. Parris?

Marc L. Parris:

It’s 30 miles north in New York City — northwest of New York City.

Potter Stewart:

Northwest, is it only (Voice Overlap) —

Marc L. Parris:

It’s — it’s across the Tappan Zee Bridge from Westchester County and right above New Jersey.

Potter Stewart:

The Tappan Zee Bridge comes into Rockland County.

Marc L. Parris:

Correct, from Westchester.

William H. Rehnquist:

South of Bear Mountian Bridge.

Marc L. Parris:

Exactly, exactly.

As to the relationship of the public defender and his assistants and as to whether a public — a public defender is in fact a policymaker, I’ve a great deal of problem because I really — from the time I read Elrod, I’ve been troubled by what this Court meant by policymaking confidential.

I think that the lower court decisions, legal periodicals are all in the same position.

Possibly Harvard Law Review is closest when they said janitors and elevator operators definitely not — are not, department heads probably are, and everyone between would have to be decided on a case by case basis by the Court.

I think that — one point I’d like to make is that the assistants are the alter ego.

They are the extension of the public defender.

They are and these — just 23 justice courts around the county and they are the public defender when they walk into those courts.

So there is an extension there.

Potter Stewart:

U.S.–

Marc L. Parris:

We assume —

Potter Stewart:

— U.S. Attorneys there, does their term expire when a new president is inaugurated?

Marc L. Parris:

I don’t know, Your Honor.

Potter Stewart:

Well, there were some a little brouhaha, but in Philadelphia not so long ago.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Marc L. Parris:

Oh, I remember that.

That was —

Potter Stewart:

But —

Marc L. Parris:

(Inaudible)

Yes.

Potter Stewart:

And in New York earlier, but — but generally, they — there is a change, isn’t there and isn’t the —

Marc L. Parris:

Yes.

Potter Stewart:

— they’re appointees of the executives or the Justice Department of the United States.

Marc L. Parris:

Correct.

And recommend —

Potter Stewart:

But you don’t know if their term expires.

Marc L. Parris:

No, I’m not sure.

Potter Stewart:

I guess they do some settling.

Marc L. Parris:

I’m not sure, Your Honor.

Warren E. Burger:

Well, the Commission of the United States Attorney as those famous last three words, “To serve at the pleasure of the President,” four words, at the —

Byron R. White:

But it is a term of office.

Marc L. Parris:

Yes.

I think it — I think it is.

And as — and assistant public defenders really live within the term of their appointing authority.

William H. Rehnquist:

Well, there’s a certain inconsistency, isn’t there?

Be — between the two facts which leads we, apparently believe to be the facts that you serve at the pleasure of an official for a term of four years —

Potter Stewart:

Which is it?

William H. Rehnquist:

In — in —

Marc L. Parris:

I don’t —

William H. Rehnquist:

— the U.S. Attorney I think it’s both.

Byron R. White:

And you have — and the four years can expire and if you aren’t reappointed, you’re through.

Marc L. Parris:

In the case of the assistant public defenders or assistance county attorneys, sir?

Byron R. White:

No.

No, no —

Marc L. Parris:

Oh, just —

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Byron R. White:

— the U.S. Attorney.

Marc L. Parris:

Oh, I’m not familiar with that, Your Honor.

Byron R. White:

The United States Attorneys.

Marc L. Parris:

As — as I was stating that I had this problem about the public defender, but I would like to give this example possibly because I’m not sure whether the public defender is a policy holder or who is the policy holder.

Is it just the legislator and his confidential secretary?

Is it a judge and his law secretary and then what about the others in an office?

I thought about this and I took the example of the possibility of a public defender stating, “We’ll have no more pleas on marijuana cases.”

And he gives that to his assistant public defenders.

And they go into the courts to implement that policy.

But he’s the one up in front.

He’s the one in the courts.

He sees the witnesses and judges the jury.

And when he comes back and they discuss it in the public defender’s office and he states that, “On this case Chief, we must take a plea.

I’ve seen that witness.

I’ve seen that judge.

You — this one, we’re going to change your policy.”

Are they not in a confidential relationship within the making, the implementing and the changing of a policy?

I’ll reserve whatever time I have left to — for rebuttal.

Warren E. Burger:

Proceed, counsel.

David Macrae Wagner:

Mr. Chief Justice and may it please the Court.

I would like to begin by addressing myself to the issue that was being dealt with by Mr. Justice Stewart, just before the lunch and recess, which is the question of the permanency of the appointments of — of assistant public defenders.

I think the record will show, firstly, Mr. Finkel was appointed with less than a year remaining in the term of his appointing public defender, Arnold Becker.

Page 94 of the record further shows that Mr. Finkel left another job to take that job.

And he testified not only that he believe his appointment permanent, subject only to the right of the public defender to discharge him for improperly performing his job, but that he would not have left one job to go to another job with only nine months of tenure remaining.

William H. Rehnquist:

Well, counsel, what do you make of Footnote 10 in Judge Broderick’s opinion at page 32A of the appendix, the fact that the plaintiffs are removable at the will of the public defender, not for a cause but at the will of the public defender?

David Macrae Wagner:

Mr. Justice Rehnquist, I think the District Court found that it — that a set term or a lack thereof was irrelevant in his application of Elrod to the fact in this case.

I don’t think he decided whether there was or was not a set term.

Potter Stewart:

Well, the very page of the record to which you referred us indicates of the awareness of the witness that he could be dismissed without a cause which means employment at will.

I’m looking toward the bottom of the page there, the last question and answer.

David Macrae Wagner:

Well, respectfully, Mr. Justice Stewart, this Court has held in the past that while employees can be dismissed for no reason, they cannot be dismissed for the wrong reason.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Potter Stewart:

Yes, I know that, but I was just indicating that this question and answer at — and without more support, Footnote 10.

David Macrae Wagner:

And I might further go on to point out that Mr. Finkel, whatever the procedure is in Mr. Parris’ County Attorney’s Office, Mr. Finkel testified that when Mr. Barone replaced Mr. Becker, he was not formally reappointed.

He took no formal steps to remain in the office.

He was merely told casually and verbally to stay on.

This is not a far cry from the situation that Mr. Justice White described whether it’s a set term and you must take an oath of office or you have no legal standing whatsoever.

The Court, I think, very accurately foresees the situation here.

There’s a big void, there is no statutory provision setting a fixed term or an unfixed term for an assistant public defender.

Potter Stewart:

And yet the District Court labeled the whole heading of its opinion on — beginning on page 25A.

Plaintiffs were not reappointed.

And it’s quite a different thing from being discharged and if two of the necessary — of the five oaths necessary to support a majority judgment in — in Elrod against Burns, limited themselves to the question of whether it was unconstitutional to discharge people because of their political beliefs.

If these people were not discharged, then Elrod is not applicable.

David Macrae Wagner:

Then, Your Honor, I would refer back to Perry v. Sindermann where there’s a very similar situation.

There was a — an unwritten agreement in — in essence that untenured teachers in fact did by tradition, have tenure.

The —

Warren E. Burger:

But Sindermann had a contract, didn’t he, year — year by year?

David Macrae Wagner:

Yes, which expired if — if I recall the facts correctly, Your Honor.

Warren E. Burger:

And meaning for 10 consecutive years which, as I recall the courts not created an expectancy of continuation to — at least that was a factor.

David Macrae Wagner:

Well, Your Honor, I might respectfully point out that Mr. Finkel who was in the public defender’s office for seven years saw under Mr. Becker four Republicans and four Democrats.

Under Mr. Barone, approximately the same mix, 4, 4 and 1 unregistered.

And certainly, Mr. Tabakman who came in later had the same expectation that succeeding public defenders would continue the nonpartisan policy of the office.

Potter Stewart:

Now, is that in the record somewhere?

David Macrae Wagner:

Excuse me.

The number of —

Potter Stewart:

No, no, his expectation that — that this in fact, whatever the law was.

In fact, this was a — an appointment of indefinite duration.

Is that in the record anywhere?

David Macrae Wagner:

Yes.

Mr. Finkel testified explicitly that he thought that the appointment was permanent.

Potter Stewart:

Where is this?

David Macrae Wagner:

I believe it’s on page — pages 76 and 77 of the appendix and also page 94 on either recross or redirected, I believe Your Honor.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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William H. Rehnquist:

Well, on page 77, there’s the question about the middle of the page, “Did you approach Mr. Barone about being retained in your position?”

Answer, “No, he just continued me in office.”

David Macrae Wagner:

And I submit, Mr. Justice Rehnquist that militates against the set term, the fact that there was no formal requirement of taking a new oath or any formal requirement other than just remaining in the same office doing the same job for a new boss.

William H. Rehnquist:

But the answer was, “He continued me in office,” not, I remained in office.

David Macrae Wagner:

Well, I can see the wording — I — I concede the wording which of course implies as we have conceded that these assistants serve at the pleasure of the public defender.

But it also indicates to me if that there’s a continuing employment in the absence of an action on the — on the part of a Mr. Branti, who attempts to terminate.

William H. Rehnquist:

Well, let me ask you this.

Is your basic claim that this is a Perry against Sindermann and Roth versus Board of Regents type of case where even though the people had no job tenure claim, they were fired for the exercise of a constitutional right of free speech or an Elrod against Burns case, or do you see no distinction between the two?

David Macrae Wagner:

Well, Your Honor, we took the position in the District Court that these were in effect continued employments.

They were not as in (Inaudible) set by statute at a fixed term.

The District Court judge as I interpreted his decision, took no position on that.He —

Byron R. White:

Evidence, said it made no difference —

David Macrae Wagner:

Exactly judge —

Byron R. White:

— even —

David Macrae Wagner:

— White —

Byron R. White:

— even if — even if their terms expire, with the public defender’s term, the failure to reappoint them for this kind of a reason was constitutionally wrong.

David Macrae Wagner:

That is correct, Mr. Justice White.

Byron R. White:

And then that’s the — that’s the judgment you’re defending here?

David Macrae Wagner:

That’s correct, Your Honor.

And in view of the fact that the —

Potter Stewart:

But that’s not covered by — that’s not covered by Elrod at all, is it?

John Paul Stevens:

As you were and that’s not what the District Court said at all.

At page 25A he said, “The third and final requirement of the concurrence in Elrod is that the attempt to remove plaintiffs from their jobs have been based upon the sole ground of their political beliefs, I find that this requirement has been satisfied.

Is — doesn’t that a finding that the only reason that they — for the removal was their political beliefs?

That’s the way the Court of Appeals interpret on page 2 (a).

The Court of Appeals said, “Judge Broderick found that appellant had attempted to terminate their employment on the sole ground of their political beliefs.”

Byron R. White:

Yes, but the question is —

John Paul Stevens:

Why would we concede something else?

Byron R. White:

But you don’t take any position — you say the District Judge didn’t take any position on whether it was a termination or a renewal.

That’s — that’s what you say.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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David Macrae Wagner:

Mr. Justice White, Mr. Justice Stevens, as I read Footnote 10, Justice Broderick says, the fact that these plaintiffs are removable at will is irrelevant to the determination of the constitutional issue.

Byron R. White:

Exactly —

David Macrae Wagner:

Therefore, I don’t think Judge Broderick reached that.

Byron R. White:

So you’re — so you’re saying even if this was a failure to reappoint, even if their terms had expired and it — and it was only a failure to reappoint, the fact that they — that they’ve refused to reappoint because of their political beliefs is constitutionally wrong like the District Court concluded.

David Macrae Wagner:

That is correct, Your Honor.

William H. Rehnquist:

You mean Elrod doesn’t — Elrod covers it if they’re — unless they’re confidential or policymaking?

David Macrae Wagner:

That is correct, Your Honor.

I believe Elrod read in conjunction with Perry.

The expectation of continued employment I believe covers a situation.

William H. Rehnquist:

Well, but that, then don’t you have to argue here that or sustain the — the holding below that these positions were not in fact confidential or policymaking?

David Macrae Wagner:

That is correct, Your Honor.

And I believe that first of all, the District Court did so find and the Court of Appeals unanimously affirmed that finding.S

econdly, I think although my learned adversary has made much of the fact that lawyers are not janitors, effect which I will be the first to concede, these lawyers are very unlike other lawyers in Government.

These are not people who give advice to town boards, to zoning boards, they are not hired by the Government to advise the Government.

They are hired by the Government to represent individual indigent defendants.

Warren E. Burger:

Well, what about —

David Macrae Wagner:

They —

Warren E. Burger:

— what about a situation where the — the new public defender comes in and says from the new policy of this office for which I am responsible will be that we will take no guilty pleas at all or alternatively, he says the policy of this office will be that your or to direct all your efforts to negotiate a plea.

We’ve got to get this calendar moving.

Now, does that not involve very high policy in terms of operating that office?

David Macrae Wagner:

The public defender himself, yes.

But he has instructed his assistant public defenders as to what they can and cannot do.

In fact, Mr. Parris gave a hypothetical example.

I can give the Court an actual example.

The District Attorney in Rockland County has established a policy that he will not accept pleas to a lesser offense in cases of driving well intoxicated where the blood alcohol reading is in excess of .20.

This is a policy that all his assistant district attorneys must follow.

The District Attorney like the public defender himself says the policy.

The assistants disobey that policy at their peril and they are subject as the plurality in Elrod pointed out, to dismissal for cause.

Warren E. Burger:

Well, but how — how is the prosecutor or the public defender, the head of the staff going to follow what each one, was it nine assistants, is going to do on each specific case.

In many instances, that assistant will be handling 10 or 20 cases in one day?

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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David Macrae Wagner:

Well, Your Honor, I think we — I think we’re drawing the distinction here between case by case discretion which both Mr. Barone and Mr. Branti indicated that individual assistant public defenders have and broad — the broad overall goals of the office as referred to in the plurality where the public defender says, “It shall be the goal of our office to concentrate on marijuana, police, driving while intoxicated, whatever you choose, and then it is up to his employees to follow that broad policy scope, but they do not decide in the initial instance what the policy of the office will be.

Warren E. Burger:

Well, my question — my point was, is it possible, feasible, with the volume of cases you’d have in these relatively minor offenses to monitor what each one is doing or is he not entitled to have — select a person of his own choice in whom he has confidence and sure knowledge that they’ll carry out his policies.

David Macrae Wagner:

Well, this —

Warren E. Burger:

Is that a factor in this case?

David Macrae Wagner:

Mr. Chief Justice, I think the — the Sheriff in Elrod was entitled to sheriff’s deputies who followed his policy directives.

And of course, any employer is entitled to have loyal employees.

Warren E. Burger:

Well, I thought you had already — I thought you had already conceded that there’s quite a difference between the deputy sheriff and a lawyer.

David Macrae Wagner:

There is a difference on a general basis, but when you — when you look at the specific duties that these gentlemen performed, is there such a great difference between trying a case — an individual case on a case by case basis within the guidelines laid down by the public defender and the decisions made by a deputy sheriff.

The deputy sheriff has the decision of life and death over a fleeing perpetuator.

There are — any job that involves any degree of discretion, there are some case by case policy decisions to be made.

For example, the deputy sheriffs maybe instructed.

Always fire one warning shot before you shoot at — at a fleeing felon, or never fire your firearm under certain circumstances.

That is a policy directive.

Or they may be given a certain latitude with regard to whether they used their firearm in — in isolated areas or metropolitan areas.

These case by case decisions, I submit, are not the policy making referred to by this Court in Elrod.

There is always in practically any occupation, some degree of case by case review by the individual.

Now, Mr. Parris, my learned adversary, indicated in some detail the value of a system which enables young attorneys to enter the political system and in effect get a leg up into politics and like Mr. Parris, I got my start in politics the same way, I don’t quarrel with that system.

However, that is not the way it works.

Of the appointees made to these positions, they were — the people as Mr. Justice Marshall pointed out who were the mature, the politically active, the successful who were able to get these favorite jobs —

Thurgood Marshall:

Who said that?

David Macrae Wagner:

Your Honor, indicated, I may have stretched your point a little bit, [Laughter] but Your Honor indicated —

Thurgood Marshall:

I thought there were quite a few independent unregistered lawyers and I know personally that are pretty good lawyers and making a pretty good living.

And he didn’t have to join any party.

David Macrae Wagner:

Your Honor, I thought your point was that in order to get ahead in politics, you had to join one of the parties.

I must say, you don’t make a good living without it.

But you have to be a member —

Thurgood Marshall:

You could not say that and I don’t believe that.

David Macrae Wagner:

Well, I’m sorry I misconstrued Your Honor’s comments in that case.

But the — that does not take away from the point that I was attempting to make which is essentially that it is not the young attorneys fresh out of law school, who get these positions, because they — with rare exceptions, unless they have some family political influence, they are not in a position to obtain these appointments.

Byron R. White:

Is the pay pretty good for these things in Rockland County and some parts of the country.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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Byron R. White:

It’s pretty much pro bono almost —

David Macrae Wagner:

No, Your Honor, it’s a fixed salary.

The reason that it is part time is because as Mr. Parris indicated, there are 23 justice courts and it’s more important to have a relatively large number of part time employees than fewer full time employees because a lot of this is night work.

And with 23 courts to be covered, it’s necessary to have a large number of personnel available several evenings a week and plus days in the office.

Warren E. Burger:

Do they work fixed hours or how’s their time?

David Macrae Wagner:

Your Honor, my understanding is they’re — they’re assigned two days a week in the office, plus each attorney is assigned certain specific courts in which they appear and handle regular calendars.

Warren E. Burger:

In the evenings?

David Macrae Wagner:

Some are evenings, some are day sessions.

It depends on when the individual court happens to sit.

Byron R. White:

Do you think this is any different in some county rule that says where in the next year, we’re probably going to have 10 public construction projects, but only Democrats or Republicans need — need been on these — or limit to bidding opportunities to Democrats or Republicans?

David Macrae Wagner:

I think that’s exactly the situation here as the District Court found.

No one who did not receive the sponsorship of the Democratic caucus which consisted of the majority of the county legislature was considered for employment as an assistant public defender.

Potter Stewart:

Well, if you made —

William H. Rehnquist:

Do you think a —

Potter Stewart:

— the issue here, then it’s not covered Elrod against Burns, is it?

David Macrae Wagner:

I believe, Your Honor, it is.

Potter Stewart:

Well —

William H. Rehnquist:

A construction job isn’t the same as — as a confidential or policymaking assistant.

David Macrae Wagner:

Your Honor, I don’t believe that these gentlemen are policy making or confidential.

William H. Rehnquist:

It may be, but for the reason hindered by — suggested my — by my Brother Stewart, I don’t think the answer to the question about whether construction jobs are assigned only to Democrats or Republicans, answers the question of whether one may choose only Republicans or Democrats for confidential or policymaking position.

David Macrae Wagner:

Your Honor, I agree with you perfectly, if these were in fact confidential or policymaking positions.

Byron R. White:

But it does get you across the bridge that there’s no difference between discharge and reappointment.

David Macrae Wagner:

I believe that that is what Perry read with Elrod in effect, says.

I don’t think that there’s a significant constitutional distinction between holding and serving in a position that you’re serving in well whether that is a fixed term or a — I mean determinate term.

I do not for a moment concede that there’s a fixed term in this instance.

I think it’s an indeterminate term.

Lewis F. Powell, Jr.:

Mr. Wagner, on that point, your witness, Mr. Finkel, said he thought he had a permanent appointment.

Did that mean until he reached retirement age or — or what does it mean?

David Macrae Wagner:

No, Mr. Justice Powell.

I believe if you — if you read his testimony in context with some later cross-examination, he realized he served at the pleasure of the public defender, but that he would not be terminated as long as he did his job properly.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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David Macrae Wagner:

This was the experience under the two prior public defenders of Rockland County.

Byron R. White:

That’s a different — that’s a different point in saying I — that’s a much stronger expectation than saying, I serve at his will and he can fire me for any reason he wants to accept my political beliefs.

David Macrae Wagner:

Well, isn’t that what this Court has said that —

Byron R. White:

Well that’s — that’s a different — still, nevertheless it’s considerably different from what you have said.

David Macrae Wagner:

Someone who serves at will can be terminated for no reason, but not an improper reason and I would submit —

Byron R. White:

That’s as far as you need to go, I guess.

Lewis F. Powell, Jr.:

You’re saying he can only be fired for cause, is that the substance of — of your view?

David Macrae Wagner:

Well, I wouldn’t go quite that far, Mr. Justice Powell.

I would — I would say that he cannot be fired for a constitutionally impermissible reason

Byron R. White:

Well, couldn’t he be fired to replace him with his brother?

I mean that’s not —

David Macrae Wagner:

Yes.

Yes, I think it was —

Byron R. White:

So that’s not for a cause, is it?

David Macrae Wagner:

That’s — no, that’s why I would not go as far as to say only for cause.

Byron R. White:

Yes, yes.

David Macrae Wagner:

I will not go any further with the —

Byron R. White:

But you would — you would say that if — that he couldn’t fire him because of his political beliefs.

David Macrae Wagner:

You’re right.

I will not go any further than to say he cannot be fired for constitutionally impermissible reasons.

Lewis F. Powell, Jr.:

Would he have an entitlement to a due process hearing before being fired, passing on that?

David Macrae Wagner:

If — if he is discharged — if he is discharged allegedly for cause.

Lewis F. Powell, Jr.:

Well, yes.

David Macrae Wagner:

Not statutorily, Your Honor.

Lewis F. Powell, Jr.:

But constitutionally?

David Macrae Wagner:

I believe that that whether would be a constitutional right to that, but not with the statute.

Byron R. White:

If — if he — if he had alleged that he was then fired for an unconstitutional reason, then —

David Macrae Wagner:

Right.

Byron R. White:

— then maybe you —

David Macrae Wagner:

If it were alleged that he had in some way improperly performed his duties and he claimed he had not improperly performed them, I believe he would be entitled to a hearing.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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David Macrae Wagner:

Certainly, there’s an —

Byron R. White:

Why would you say that — why would you say?

You just concede — what if he said — what if he said, “Well, I was fired — I was doing my job well, but I was fired because — not because I didn’t do my job well, but because he want to replace me with my brother.”

He wouldn’t get any hearing.

David Macrae Wagner:

No, that’s correct.

I — I said, Your Honor, if he were allegedly dismissed for improperly performing his duties, he would have a hearing.

I can see that.

David Macrae Wagner:

That would be discharge for a cause.

William H. Rehnquist:

He’s not entitled to be discharge only for a cause.

David Macrae Wagner:

No.

Again, Your Honor, I will have to fall back on my statement that he can be discharged for any reason except an impermissible one, except the constitutionally abhorrent reason.

William H. Rehnquist:

Well, and — and what are those —

David Macrae Wagner:

Well —

William H. Rehnquist:

— that are involved in this case?

David Macrae Wagner:

Specifically in this case, as the District Court found, these assistant public defenders were not continued in their employment solely because they were not members of the majority political party in Rockland County and were not sponsored by members of that party.

William H. Rehnquist:

Okay.

Then you’ve got to show in addition to that, that they were not confidential or policymaking officials.

David Macrae Wagner:

Absolutely, Mr. Justice Rehnquist and that is what exactly what we contend, that they are — the District Court so found, the Court of Appeals affirmed that finding, they are case by case representatives of the indigent.

They do not make Government policy.

They do not advise Government boards.

They do not even advise the public defender other than to say, “Here I am, give my files to go to court, and I’ll represent the indigent.”

That is —

William H. Rehnquist:

Well — well, what if one of them comes into the public defender and says, I think we’ve got a real problem with judge so and so in such and such a precinct.

And I think we ought to try to transfer all the cases we can out of that precinct to another one.

Now, isn’t there some sort of confidentiality there?

David Macrae Wagner:

I don’t believe there’s anymore confidentiality there than a deputy sheriff for police officer saying so and so’s bar in downtown Rockland County is a hangout for young alcoholics and there are fights there every night, we ought to increase our police —

Byron R. White:

Or that we’re having trouble getting search warrants from the certain judge.

David Macrae Wagner:

Exactly, Your Honor.

It’s — again, Mr. Justice Rehnquist, I think that is a recommendation to a policymaker which may or may not be acted on the public defender, still has the absolute right to say you’re wrong, we’re not going to do it.

He makes the policy.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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William H. Rehnquist:

But faithfully, a confidential employee is the one who makes a recommendation to a policy maker and not in himself will recommend a policymaker.

Isn’t not so?

David Macrae Wagner:

I believe that that was Judge Broderick’s definition of confidentiality which I think is a good one.

One who stands in a confidential relationship to a policymaker, but he as I limits that to — for example, a — the confidential secretary to a town supervisor, a confidential law secretary to a judge, someone with whom there’s a very close interaction.

I don’t think that as I read Elrod, this confidentiality extends to an entire office of people who were essentially employees.

Undoubtedly, the chief assistant public defender’s confidential because he is the alter ego of the public defender just like Mr. Newcomb.

In the Newcomb case, who was the deputy city attorney who had — who made policy, made law, was in line to succeed as mayor of the City of Milwaukee, I believe it was.

Certainly, he was a policymaker, but the city attorneys under him were not —

Warren E. Burger:

Do you think that the assistant sometimes give legal opinions to their superiors as to what should be done about a case?

David Macrae Wagner:

Yes, Your Honor.

As to what to be done about a case, but that again is, as the plurality points out, decision making on a case by case basis, not broad overall implementation of policy such as concentrated on a particular type of crime —

Warren E. Burger:

But if — if he’s doing that, he’s in the relationship with the lawyer to a client essentially, is he not?

David Macrae Wagner:

I don’t believe so, Your Honor.

I think it falls within Mr. Justice White’s analogy of the police officer who says, “We’re having troubles getting a search warrant from a certain judge.”

Warren E. Burger:

Well, that’s not —

David Macrae Wagner:

It’s —

Warren E. Burger:

— that’s certainly a confidential matter, isn’t it, if — if nothing else?

David Macrae Wagner:

Well, Your Honor, I would submit that the — probably, the lowliest clerk at the FBI must keep his information confidential, but does that make him constitutionally unprotected as a policymaker?

I don’t believe it does.

Warren E. Burger:

Well, let’s — let’s stay with this situation.

An assistant says “Let’s keep away from Judge Jones.

He just never will give us a warrant.”

Now, is that a confidential communication within that office?

David Macrae Wagner:

I believe the communication is confidential, but I —

Byron R. White:

He hopes it is.[Laughter]

David Macrae Wagner:

I do not believe that that creates a confidential relationship as this Court meant it in Elrod, because if you’re going to make that many employees confidential, then aren’t you in a sense — in — in essence vitiating the holding in Elrod?

Oh, I think the plurality in Elrod very meticulously detailed the reasons for excluding confidential and policymaking employees and left the others protected by that holding.

And the reason was, as I interpret it, that the policymaking and confidential employees were in a position to, in effect, thwart the goals of the newly appointed public defender or sheriff or whatever.

Whereas, assistant public defenders, the only way that they could embarrass or interrupt the operation of the public defender’s office would be if they did not competently perform their jobs.

And then, of course, they could be discharged for cause.

Audio Transcription for Oral Argument – December 04, 1979 (Part 1) in Branti v. Finkel

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David Macrae Wagner:

So that, I submit that they do not come in under the heading of those who must be excluded from the Elrod holding because they are in a position to obstruct their supervisors.

Warren E. Burger:

Don’t you — don’t you think a defense council could throw a case as it were if you know what I mean by that —

David Macrae Wagner:

Oh, yes.

Warren E. Burger:

— that is — and do it — if he did it skillfully in a way that it would be very difficult to establish that fact?

David Macrae Wagner:

Well, it maybe different —

Warren E. Burger:

He’s not very unpopular defendant and the community is aroused and wants that fellow to go to jail and the — this assistant defenders politically ambitious and — so he just lets his fellow go down the drain.

It’s — that’s a possibility, isn’t it?

David Macrae Wagner:

Of course, it’s a possibility, Your Honor.

But then again, he is not properly performing his job, just isn’t as —

Warren E. Burger:

Do you think it’s easy to — to monitor that kind of thing?

David Macrae Wagner:

Corruption is never easy to monitor anymore than it’s easier to monitor a corrupt deputy sheriff who takes bribes to let felons escape.

It happens.

We try and prevent it, but it’s going to happen no matter how hard we try.

I don’t think that that’s the setting criteria in my opinion.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Parris?

You have about two minutes left.

Marc L. Parris:

I make — I make two quick points.

I don’t want to leave this Court that — this Court’s be left with the impression that Democrats in Rockland County don’t rehire Republicans to of the leading people in the county, Mr. George Ranker (ph) who is director of our order to control is a Republican.

Usually —

Byron R. White:

There are some, they don’t.

Marc L. Parris:

Some they don’t [Laughs], right.

But we have quite a few at the annex to want to leave that impression and I would just leave the Court with — as to the question of continuation of employment which I think is paramount as was stated by Mr. Justice Stewart in Board of Regents versus Roth, “It stretches the concept too far to suggest that a person is deprived of liberty when he simply is not rehired in one job but remains as free as before to seek another.”

Thank you.

Warren E. Burger:

Thank you, gentlemen, the case is submitted.

We’ll hear arguments next in Ford Motor Credit –You don not say that and I don’t believe that.